YASHPAL Vs. RAM BILAS

JUDGEMENT

(1.) This judgment will dispose of three Regular Second Appeals bearing Nos. 502 of 1981, 613 of 1981 and 837 of 1981 as they are arising from the judgment passed by the learned Additional District Judge, Jind dated 24-11-1980, vide which he has dismissed two appeals and one cross-objection, confirming the judgment and decree passed by the trial Court.

(2.) The brief facts of the case are that shop in dispute was originally owned by one Ram Gopal. It was inherited by his two sons, namely, Jai Narain and Chet Ram in equal shares. The shop in dispute, which is a double storey, building is 90' in length and 18' in width, and is situated in Jind Mandi. The front portion of the shop opens in the Mandi and the rear portion of the same opens towards the back of the Mandi. In the year 1956, Chet Ram, who was co-sharer to the extent of half share, let out the front portion of the shop to M/s. Karta Ram Rameshwar Das without the consent and authority of the other co-sharer, namely, Jai Narain. Subsequently, after the death of Chet Ram, his sons and daughters sold their half share in the shop in dispute to Yash Pal son of Rameshwar Dass (defendant No. 1 ) vide registered sale-deed dated 20-8-1975. On 26-9-1975, Jain Narain (plaintiff)filed the suit for partition of the aforesaid shop in which he had impleaded Yash Pal as defendant No. 1 as well as the firm M/s. Karta Ram Rameshwar Dass as defendant No. 2. In the said suit for partition, there was no dispute about the share of the parties and a preliminary decree was passed by the Sub Judge 1st Class, Jind vide its judgment dated 19-11-1976 for partition of the shop in dispute in favour of the plaintiff and against defendant No.1. The share of the plaintiff in the suit property was declared to be half and defendant No. 1 was of another half, and Mr. Chattar Singh, Advocate, was appointed as Local Commissioner to report about the mode of partition. ,

(3.) After passing of the preliminary decree, as aforesaid, the Local Commissioner submitted his report suggesting that the shop in dispute should be divided horizontally, that is to say in such a way that one party would get the front portion opening in the Mandi and the other would get the back portion. This mode suggested by the Local Commissioner was not acceptable to the plaintiff-Jai Narain (who died during the pendency of the suit and his legal representatives were impleaded). He filed objections against this report. His contention was that shop in dispute should be partitioned longitudinally by constructing a wall through and through and only that partition will be a just partition between the parties and partitioning the shop horizontally by giving front portion to one party and the back portion to another party, will be unjust and unequal, as the front portion of the shop which opens in the Mandi, is the only valuable portion of the shop. Therefore, both the parties should be given equal share of the front portion of the shop in dispute. Defendant No. 2, who was the tenant of the Chet Ram in the front portion of the shop in dispute, raised a contention that he is in occupation of the front portion of the shop as a tenant and tenancy created by a co-sharer is binding on the other co-sharer and he can be evicted only under the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as 'the Rent Act') and no wall can be raised dividing his tenanted premises into two portions. Defendant No. 1 took the stand that the shop in dispute should be divided horizontally and front portion of the same should be given to one party and the back portion should be given to another party and difference between the value of the front and back portion of the shop should be assessed and the person who gets the back portion can be compensated by the difference of value. It is pertinent to mention here that defendant No. 1 - Yash pal is the son of Rameshwar Dass son of Karta Ram. Therefore, defendant No. 1 is the son of the sole proprietor of the firm i.e. defendant No. 2.